Stinson v The State of Western Australia

[2014] WASCA 72

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   STINSON -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 72

CORAM:   McLURE P

MAZZA JA

HEARD:   7 MARCH 2014

DELIVERED          :   10 APRIL 2014

FILE NO/S:   CACR 13 of 2014

BETWEEN:   BRADLEY JAMES RAYMOND STINSON

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :SIMMONDS J

File No  :INS 124 of 2013

Catchwords:

Criminal law - Murder - Application for leave to appeal against sentence - Whether non-parole period manifestly excessive

Legislation:

Criminal Code (WA), s 279
Sentencing Act 1995 (WA), s 90(1)

Result:

Leave to appeal refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr S B Watters

Respondent:     No appearance

Solicitors:

Appellant:     Fort Legal

Respondent:     Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Power v The Queen [1974] HCA 2; (1974) 131 CLR 623

Prestidge v The State of Western Australia [2014] WASCA 16

Rosewood v The State of Western Australia [2014] WASCA 21

Silva v The State of Western Australia [2013] WASCA 278

The State of Western Australia v Lee [2013] WASCA 246

1. McLURE P: This is an application for leave to appeal against sentence. The appellant was convicted on his plea of guilty of murdering Tracy Jane Holloway, contrary to s 279 of the Criminal Code (WA). On 9 December 2013 the appellant was sentenced by Simmonds J to life imprisonment with a minimum period of 17 years before being eligible for release on parole.

2. The sole ground of appeal is that the minimum period of 17 years is manifestly excessive.

3. The facts found by the sentencing judge are as follows.  The appellant, a married man, had been in an extramarital relationship with the deceased for around three to four years.  On 9 December 2012 the deceased went to the appellant's residence where she stayed for a week while his wife and daughter were overseas.

4. On 15 December 2012 the appellant and the deceased began arguing with one another which resulted in a physical altercation.  The deceased remained at the appellant's residence where they continued to argue over the following two days.  At some point in that period, the appellant assaulted the deceased in the lounge room.  The appellant inflicted a blow to the deceased's head when it was less than 20 cm from the ground, causing blood to project onto the furniture, ceiling, and wall of the lounge room.

5. Some time between the evening of 17 December 2012 and the early morning of 18 December 2012 the appellant asked the deceased to pack her belongings, saying he would take her home.  On the way to her residence, the appellant drove the deceased into the Belmont Park Racecourse in Burswood where he was employed as a security officer.  The appellant drove to the centre of the racecourse and parked his utility vehicle.  He and the deceased got out of the car, arguing.  At some point the appellant retrieved a club hammer from his vehicle and used it to inflict multiple strikes to the deceased's head.  The appellant then put the deceased into the tray of his utility and drove to a horse wash bay where he hosed blood from the deceased.  With the deceased concealed in the tray of the utility, the appellant drove to a street in Maddington where he dumped her naked body on a street verge.  He left the scene and made further efforts to clean his vehicle by hosing it down.  The appellant then drove to a semi-bush location where he disposed of his soiled clothing and that of the deceased.  He also disposed of the murder weapon at an unknown location.

6. The sentencing judge rejected the appellant's claim that he had killed the deceased because she had called his wife and daughter 'Asian sluts' and 'whores' and had said she would scream rape.

7. The expert medical evidence established a pattern of numerous and severe blows to the deceased's head which brought about her death, at the very latest, soon after the blows ceased.  The sentencing judge found that the appellant intended to kill the deceased, at least after the initial blow that caused her to fall to the ground.  He also found that no significant premeditation or planning was involved.

8. The appellant was aged 57 at the time of the offence.  He cooperated with authorities, pleaded guilty at the earliest opportunity, had no prior convictions of significance, was remorseful and had accepted responsibility for his conduct.

9. The appellant had a difficult upbringing.  He was placed in State care at the age of 18 months and grew up in a children's home.  He had a history of misuse of alcohol.

10. The sentencing judge was provided with a psychiatric report, a psychological report and a pre‑sentence report. The sentencing judge made a number of findings as to the appellant's mental condition, a subject he addresses throughout his reasons (including at [79], [87], [89], [109], [111], [112], [124] and [127]). In summary, the sentencing judge found that the appellant was suffering from 'a mental disorder, abnormality, or impairment of mental function' [89] at the time of the offence but that it was not a 'major or significant psychiatric or mental illness' [109]. Although his condition reduced his culpability it did not, to a substantial degree, affect the appropriateness of sentencing the appellant as a vehicle for general deterrence and did not affect considerations of punishment [127].

11. The appellant must establish that the sentencing judge made an express or implied material error of fact or law.  A claim of manifest excess depends upon establishing the implication of an error from the sentence itself.  The appellant must establish that the minimum period of 17 years is unreasonable or plainly unjust.

12. A court that sentences an offender to life imprisonment for murder must, if it does not order that the offender never be released, set a minimum period of at least 10 years before being eligible for release on parole:  Sentencing Act 1995 (WA), s 90(1). Under the current law, there is no statutory upper limit for the minimum period.

13. The minimum period before being eligible for release on parole under s 90 is determined by reference to what justice requires, having regard to all the circumstances of the case:  Power v The Queen (1974) 131 CLR 623, 629.

14. In determining whether a minimum period under s 90 is manifestly excessive regard is had to any statutory limits on the available minimum period, the standards of sentencing customarily imposed for offences of the relevant type, the place which the criminal conduct occupies on the scale of seriousness and the personal circumstances and antecedents of the offender. 

15. The legislative history relating to sentences for murder and the range of minimum (non‑parole) periods customarily imposed are detailed in The State of Western Australia v Lee [2013] WASCA 246 [29] ‑ [40]. Relevant cases since Lee include Silva v The State of Western Australia [2013] WASCA 278, Prestidge v The State of Western Australia [2014] WASCA 16 and Rosewood v The State of Western Australia [2014] WASCA 21.

16. The appellant focused attention on Silva.  In that case the offender murdered his wife with whom there was a history of marital disharmony and domestic violence stemming from her infidelity.  The deceased died from head wounds inflicted by the appellant with a gympie hammer.  The offender, who had an intention to kill, made an early plea of guilty and was a person of prior good character.  He was sentenced to life imprisonment with a minimum period of 17 years.

17. To focus on an individual sentence reviewed by an appellate court is to misunderstand the relevance of sentences customarily imposed.  They provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind that there is scope for significant variations in relevant sentencing factors and no single correct sentence.

18. The minimum period of 17 years imposed in this case is broadly consistent with sentences imposed for what is the most serious offence in the Code.  The circumstances of the appellant's offending are towards the upper end of the scale of seriousness.  He inflicted very significant violence on the deceased in the extended period leading up to the deadly blows to the deceased's head that he inflicted with an intention to kill.  Further, the fact and manner of the appellant's conduct in disposing of the deceased and his active steps to avoid responsibility are additional aggravating factors.  Finally, on my reading of the psychiatric and

psychological evidence the sentencing judge's conclusion that the appellant did not suffer from any major or significant psychiatric or mental illness is accurate.

1. Having regard to all relevant sentencing considerations, the appellant has fallen short of establishing that he has reasonable prospects of succeeding in his claim that the minimum period of 17 years is manifestly excessive.  I would refuse leave to appeal and dismiss the appeal.

2. MAZZA JA:  I agree with McLure P.